Guns and the States

The Supreme Court takes up another Second Amendment case.

Updated March 2, 2010 12:01 a.m. ET

The Supreme Court today is the scene of a Constitutional duel in a case that will decide if the Second Amendment's guarantee of an individual right to bear arms applies to the states. The answer will determine whether the Court's landmark 2008 decision in District of Columbia v. Heller is a hollow legal anomaly, or if it extends nationwide.

In McDonald v. Chicago, the Justices will consider whether the Windy City's ban on handguns is Constitutional. Brought by plaintiffs including 76-year-old Otis McDonald, who wants to keep a handgun in his South Side home to protect himself from gangs, the question is similar to that in Heller, which challenged a handgun ban in the District of Columbia.

However, unlike Washington, D.C., which is governed directly by federal law, the challenge to Chicago's gun ban comes to the Court under the Constitution's 14th Amendment, which protects fundamental rights against infringement by the states.

In a basic sense, it's hard to believe the Court won't apply the Second Amendment to states. Over the past century, the Court has said that part or all of the First, Fourth, Fifth, Sixth and Eighth Amendments apply to the states. It would be bizarre for the same majority in Heller to now say that the Second Amendment is the Bill of Rights exception.

One important question, however, is the reasoning the Court decides to use. The traditional path for applying the Bill of Rights to the states has been the Due Process Clause of the 14th Amendment, and that is what the National Rifle Association is mainly arguing in its brief in this case.

But some conservatives—including Justices Antonin Scalia and Clarence Thomas—have been highly critical of the legal doctrine known as "substantive due process," a contradiction in terms that can be a vehicle for judicial activism and inventing rights not found in the Constitution.

We share their skepticism when this means inventing new "substantive" rights. But the Second Amendment is not new. By now the Court has spent a century using the Due Process Clause to apply the Bill of Rights to the states, so this is hardly activist legal territory or some great expansion of due process law. This is the judicially restrained path to applying Heller to the states.

Meanwhile, some supporters of Mr. McDonald want the Court to go further and use the Privileges and Immunities Clause of the 14th Amendment to apply Heller to the states. That clause states that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

In the 1873 Slaughter-House Cases, the Court ruled that the clause did not safeguard the Bill of Rights against state laws. That decision has long been criticized on the right and left, and many libertarians would like to rehabilitate that clause as a way to protect property rights against overreaching state laws. We also wish the Court protected property rights more than it has in the likes of the notorious 2005 Kelo decision, but the Justices don't need the Privileges and Immunities Clause to do so. They can use the Takings Clause, among others.

If the Privileges and Immunities Clause does become an engine to discover rights in the Constitution, liberals are likely to use it for far more than protecting property. A liberal majority could soon cite it as a precedent to assert a "right" to health insurance, or welfare, or a certain level of income. No less a legal activist than President Obama has lamented that such a right to economic redistribution has not been heretofore located in the Constitution's text.

The Justices needn't go this far afield to find that the individual right to bear arms that they correctly upheld in Heller applies to the entire country. If the First Amendment's right to free speech applies to the states, then so does the Second Amendment.

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